Children are at risk because judges cannot rule on violence early enough

A core function of the family law courts should be to decide early in each case what the nature and extent of any family violence has been.
Photograph: Alamy Stock Photo

It is a sad truth that as we enter a new year, too many families are grappling with the aftermath of holiday celebrations marred by family violence. While many people enjoy a break from work and time with loved ones over summer, others in our community are at greater risk. There are an extra 44 incidents a day of family violence over the holiday period in Victoria alone. As a family lawyer I see how family violence continues to present risks to children while separating parents determine their children’s living arrangements.

Many Australians still believe women lie about or exaggerate family violence in family law proceedings – where separating couples are deciding on the future arrangements for their children or dividing property. This shows that while community awareness about family violence is growing, we still have a long way to go. Some misconceptions are deeply held.

We know that, statistically, it is unlikely womenwill lie about family violence. On average, one woman a week is murdered by her current or former partner, one in six women have been subjected to violence by a current or former partner in their lifetime and the risk of family violence is significantly increased during and after separation. The reality is that in a large number of family law court matters, a parent has used violence. We know violence is a factor in about 80% of legally-aided matters.

So what can we do to ensure family violence in family law cases is better managed? An important change Victoria Legal Aid and many others are recommending is a new requirement for the court to make a decision at an early stage about whether family violence has occurred. This should be a core function of the family law courts: to decide early in each case what the nature and extent of any family violence has been.

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This early finding would then be available to inform any later decision, by a judge or other professional, that impacts on safety. Of course, risk can change over time and new information should be factored into decisions as it becomes available. But that does not change the clear evidence base that tells us past violence is one of the best predictors of future violence. It shouldn’t be minimised and it must be considered and decided on by the court.

There has been plenty of recent media attention on the significant delays in the family law courts. Matters can take up to four years to reach a final decision. While families wait, interim parenting orders often determine the day to day living arrangements for children. These orders can be agreed by parents or decided by a judge, but if an early finding about family violence is not available, the interim orders and particularly those agreed between parents, might not adequately consider family violence risk.

We need to change this. The protection of children from violence must be a top priority for the family law system. The federal government should require the court to decide at an early stage if family violence has occurred and, importantly, allocate the necessary resources to allow this to happen. While an early finding won’t resolve every case more quickly (and in many cases there are several issues the court must consider), for a large number of families this change would result in shorter wait times for a final order and safer interim arrangements.

It’s been a year now since the standing committee on social policy and legal affairs made this recommendation to government in their federal parliamentary inquiry and report on “A better family law system to support and protect those affected by family violence”. As it prepares to receive a major report on the family law system, it’s time we saw the government act on this recommendation. This is one more step we can take to help to keep parents and children safe, and that is in everybody’s best interests.